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August 1, 2012

"Why Does The Government Want To Shut Up Bryan Epis?"

In this recent prior post, I reported on a remarkable resolution to a remarkable federal criminal justice matter involving Bryan Epis, a California cannabis club operator.  I became aware of this story via Epis's attorney John Balazs, whom I invited to contribute additional thoughts about the case via a guest blog post.  John Balazs sent me a commentary with the heading that appears in the title of this post, and here is the interesting information and ideas that followed:

Bryan James Epis is a well-known medical marijuana activist who is believed to be the first person to be tried in federal court for cultivating marijuana for medical purposes after the 1996 ballot initiative that legalized medical marijuana in California.  Although only 458 plants were found at his residence, the government extrapolated from a disputed spreadsheet to project that his “conspiracy” to grow marijuana was for at least 1,000 plants, the threshold to trigger a mandatory minimum 10-year sentence.  Epis was found guilty at a jury trial of conspiracy to grow more than 1,000 plants and of producing more than 100 plants.  He was sentenced to 10 years imprisonment, a $15,000 fine, and 10 years of supervised release.  After multiple post-trial evidentiary hearings and extensive litigation, his conviction and sentence were upheld on appeal.

In January 2011, Epis filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §2255, the federal equivalent of habeas corpus action to challenge a state conviction.  The motion included a number of claims for relief, including that Epis’s trial attorneys were ineffective in advising him concerning a plea offer and that the government committed misconduct in misrepresenting the nature of the spreadsheet.  The motion was supported by a 51-page Memorandum of Points and Authorities and numerous other documents.  I was Epis’s attorney in his § 2255 litigation.

Last month, the district court signed off on a rare settlement agreement in which Epis’s conviction on the conspiracy count was vacated and he was resentenced to 90 months on his conviction of growing more than 100 marijuana plants within 1,000 feet of a school. With the time he has already served, the agreement results in his remaining sentence cut by more than half.  Speaking for myself only, this blog is to comment on a couple of the more unusual and significant aspects of the settlement.

This case is one of the first after the Supreme Court’s decision in March in Lafler v. Cooper, 132 S.Ct. 1376 (2012), where a defendant obtained relief on a ground that was upheld in Lafler, i.e., that his trial attorneys rendered ineffective assistance in violation of the Sixth Amendment by providing deficient advice that resulted in him turning down a government plea offer and receiving a harsher sentence. Before the settlement, the parties deposed Epis’s trial attorneys, who did not refute the basis of Epis’s claim as neither could sufficiently recall their legal advice to Epis regarding the government’s offer. Given a likely evidentiary hearing, additional briefing, a potential appeal, and significant litigation risk on both sides, the settlement made sense for everyone.  Although the essential agreement was reached quickly after the deposition concluded and Lafler was decided, the case was delayed while the government sought guidance from the Department of Justice in D.C. concerning how to deal with the Lafler claim.  Ultimately, I was told that the DOJ would not be issuing any policy memo to U.S. Attorneys on Lafler claims and that each office should deal with such claims as appropriate on a case-by-case basis.

When the final agreement was ironed out, the government insisted on a condition barring Epis from advocating with respect to marijuana during his imprisonment and supervised release. While courts have upheld conditions of supervised release that limit First Amendment rights when reasonably related to the protection of the public, e.g., United States v. Ross, 476 F.3d 719 (9th Cir. 2007) (upholding condition barring association with neo-Nazi/white supremacy groups), I cannot comprehend what legitimate interest the government has in requiring a broad First Amendment restriction that bars lawful advocacy for the reform of our marijuana laws. The condition itself is vague and it’s unclear what actions are prohibited. Is Epis now barred from writing his Congressperson to ask that our country’s federal drug laws be amended to allow individual states to permit its residents to use marijuana for medical purposes?  And, even if the government could lawfully bar Epis from any advocacy to change our marijuana laws (which I doubt), why does it want to do so?  Putting aside the doubtful constitutional validity of a broad, no-advocacy condition, prohibiting U.S. citizens from lawfully advocating to reform our laws — on marijuana or otherwise — is bad policy and bad precedent.

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"Why Does The Government Want To Shut Up Bryan Epis?"

Because it mistook him for Glenn Beck?

Posted by: Bill Otis | Aug 1, 2012 6:05:22 PM

That's the thing that confuses and bothers me about this case -- it's speech, and not speech that is reasonably related to the protection of the public. I agree that not everyone is going to agree that marijuana laws ought to be reformed, but isn't the solution for that to fight ideas with other ideas and not to cut-off-his-mic?

Posted by: Guy | Aug 1, 2012 9:30:19 PM

"Why Does The Government Want To Shut Up Bryan Epis?"

My guess is because they don't like what he has to say, and because they can. Just like the founders intended.

Posted by: C.E. | Aug 1, 2012 10:25:31 PM

C.E. --

The restriction was not part of the original sentence, and exists now only because Epis agreed to it. It's well settled that defendants can waive constitutional rights in order to get something they value more. Nothing new there.

For my own part, I view the government's wanting this condition as foolish and pointless. It's foolish because it makes the government look like a tinhorn tyrant, and it's pointless because Epis can continue the (oddly) disliked advocacy through surrogates (which as we see has already started), and because numerous others, with credentials as good or better than Epis, will continue to make the argument. Finally, it's pointless because it's temporary; in short order, Epis will be making up for lost time.

I'm sure someone in the USAO was thinking something; I just don't know what it was.

Posted by: Bill Otis | Aug 1, 2012 10:36:06 PM

I believe that this is being done because the justice departement is worried about these guys who have been prosecuted and served their sentences. They are having an impact on the attitude of the public about marijuana legalization.

Bill's right - people agree to many things for their freedom, it is also foolish and pointless. Last month Robert Platshorn - a marijuana smuggler who served 30 years was told he could no longer promote his Silver Tour activities. This was his campaign to promote legalization for seniors.

Robert Platshorn was contacted by a parole officer shortly after the Wall Stree Journal had a article about the Silver Tour's apparent success. Platshorn was scheduled to speak at the Aug 4 American Bar Association's national convention. He is no longer able to travel and speak about marijuana.

Posted by: beth | Aug 2, 2012 10:34:55 AM

A good resume is an extremely important tool in the job search process.your resume must be able to get the attention of the hiring partner and create a good, strong impression at a brief glance.

Posted by: Legal Services CV | Aug 4, 2012 4:46:56 AM

It sounds like Platshorn has a better claim to challenge the condition, since I am assuming from the details above that he did not agree to the condition as part of any deal, but it was just imposed on him by his parole officer.

While it is true that a defendant can waive rights/agree to conditions, it would nevertheless seem that there should be some limit on the Government's ability to use its immense leverage to extract inappropriate concessions, no? I need to think this through, and maybe the limit is just prosecutorial discretion. But at the extremes (and maybe Epis's case doesn't reach the extreme - but it's in that direction), it seems like that should be backed up by something a bit more rigorous.

Posted by: Anon | Aug 6, 2012 12:27:59 PM

Think it through, could the government also require as part of a plea deal that the defendant refrain from interracial marriage, or pray to God every Sunday?

If the speech is protected from direct government action, the government shouldn't be permitted to do indirectly what it can't do directly.

Posted by: Anon | Aug 7, 2012 4:18:29 AM

Anon --

Could the government require as part of a deal that the defendant give up his right to a trial by a jury of his peers -- a right the Founders regarded as fundamental to protecting citizens from the enormous power of an overbearing state?

Sure. And it happens every day.

If I were a defendant who already prayed to God every day, and the government thunderously demanded, as part of a deal that I viewed as quite favorable, that I pray to God every day, I would take that deal in a New York minute and laugh all the way to the bank that I had so completely snookered the DA.

Moral of story: Let people decide for themselves what rights they are willing to surrender in order to advance objectives they view as more important to them than what they are giving up.

Posted by: Bill Otis | Aug 7, 2012 11:17:32 AM

Shoot, it just makes it sound as if charging and plea deals = blackmail coercion.

Posted by: beth | Aug 7, 2012 3:43:13 PM

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